Alan Keyes's Daffy Idea to Repeal the 17th Amendment

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Mr. Gould, professor emeritus at the University of Texas at Austin, is writing a history of the Senate in the twentieth century.

Alan Keyes, the Republican senatorial candidate in Illinois, has now joined Senator Zell Miller of Georgia and House Majority Leader Tom DeLay in calling for repeal of the Seventeenth Amendment to the Constitution, the one that provides for the direct election of United States senators. Senator Miller, who has introduced his own amendment to repeal the Seventeenth, contends that the direct election of senators “was the death of the careful balance between state and federal governments.” Once the Senate was the province of members “who thoughtfully make up their own minds, as they did during the Senate’s greatest era of Clay, Webster, and Calhoun.” Now senators, in Miller’s view, “are mere cat’s paws for the special interests.” Miller favors returning the right to elect senators to the state legislatures who had that job until the Seventeenth Amendment was ratified in 1913. Keyes agrees since it seems likely that the Illinois electorate is not going to prove receptive to his bid for that state’s open Senate seat. Before this flawed idea gets any traction, it would be well to recall the historical circumstances that led to the adoption of the direct election amendment in the first place.

Why did Americans in the Progressive Era endorse this change in the nation’s fundamental law? Put aside the senatorial giants that Miller mentions--- John C. Calhoun, Daniel Webster, and Henry Clay. Consider three lesser known figures in the history of the upper house—J. Edward Addicks, William A. Clark, and William Lorimer. Few history books devote more than a line or two to these three obscure gentlemen, but they were important players in the reason why the Seventeenth Amendment came into being.

By 1900 complaints about the way that United States senators were elected filled the press of the day. “The legislative system of electing Senators has broken down,” wrote a commentator in the Arena in 1905. Critics cited the senators who had recently been indicted and convicted of crimes, Joseph R. Burton of Kansas and John Mitchell of Oregon. Other senators such as Chauncey Depew of New York had been found to be on the payroll of corporations. There was in the Senate the general presence, as the Nation put it, of “those whose corruption or surrender to corporate interests has too long stained the reputation of a great legislative body.” Politicians associated with the Progressive Movement, such as William E. Borah of Idaho and Joseph L. Bristow of Kansas, argued that direct election represented a forward step toward cleaner politics when corruptible state legislatures gave way to the people.

Now to those three obscure men. William A. Clark was a wealthy silver miner from Montana whom the legislature in that state sent to the Senate in 1899. Subsequent investigation determined that he had spent more than $140,000 of his money bribing lawmakers in the legislature. After resigning his seat in early 1900, he was returned to the Senate by the Montana legislature under less sordid conditions. J. Edward Addicks was a millionaire from Pennsylvania who tried to buy himself a Senate seat from Delaware in the 1890s and early 1900s. Spreading his cash around, he put the state into a political turmoil that left it without one of its senators for several years. Finally, Senator William Lorimer received a majority of the votes from the Illinois legislature in 1909. Later revelations disclosed that bribery of some legislators had been a key part of Lorimer’s victory. The senator himself was not involved with the illegal acts, but the specter of “Lorimerism” convinced many citizens that legislatures were not the proper vehicles for selecting United States senators. In 1912 Lorimer was expelled from the Senate. By then the direct election of senators had become a constitutional amendment and was on its way to ratification.

The Seventeenth Amendment did not bring the new political morality to the Senate that its advocates had forecast. Many problems of campaign finance, corrupted elections, and the power of special interests remain to plague the Senate chamber. But a resolution of those issues will not occur by returning to a fancied golden age of senatorial excellence before the Seventeenth Amendment came on the scene. State legislatures are not the answer to improving the Senate any more than they were in 1900. Such a reversion might have the effect of reducing campaign expenses since the cost of influencing several dozen state lawmakers would be well below the current outlay for running a statewide election. Yet it is laughable, in light of the historical experience of a century ago, to suggest that a return to a system so susceptible to corruption, log-rolling, and the flouting of public opinion would be any kind of improvement over the present state of affairs. The contemporary problems of the Senate need to be addressed. Relying on the undemocratic methods that came before the Seventeenth Amendment provides no way to embark on the salutary process of reforming the Senate.

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Shawn Elletson - 2/14/2010

Thank you Mr. Clarke for exposing the ignorance and arrogance of Mr Gould (pity the Texas education system), along with the hoax of constitutionality of the 17th Amendment. To prove this, I will directly quote Mr. Gould, who stated that legislatures "gave up their power to elect senators...", which of course was State suffrage in the Senate. A reading of Article V of the Constitution will reveal a couple of items outside what is common knowledge. The Article spells out the standard Amendment process and the options available AND the two exceptions. These exceptions are little known, with the first one simply preventing specific Clauses from being Amended for a limited time, which expired in 1808. The second exception is the applicable and states "and that no State, without its Consent, shall be deprived of it's equal Suffrage in the Senate." Mr. Lewis was correct that some states did "consent" and gave up their suffrage, but on 26 February 1913, the Utah legislature rejected the Amendment. Article V, as applied to the proposed 17th Amendment, would have required 100% ratification instead of the standard three fourths. The first exception to the standard amendment process as stated in Article V is a prohibition of Amending specific clauses for a limited time, while the second exception was to the three fourths rule to protect the balance created in Congress, with the House representing the "people" and the Senate where the "States" had their voice. So the condescending use of "daffy" by Mr. Lewis highlights the arrogance of a professor writing on the History of the Senate, a body established by the Constitution. This "historian" follows the sheep in his belief that the 17th Amendment was properly ratified, and fails to read and understand the (roughly) 150 word Article V and its simple and explicit instructions. Now when others see his words and read Article V, the academic credentials he holds up will be tarnished by the plain and simple fact by the Utah rejection, the 17th Amendment, is (presently) invalid. However, if the States that did not ratify in 1913 (10 + Alaska and Hawaii) were to subsequently pass the Amendment in their Legislature, the only remaining question would be hypothetical passage by a 21st Century Utah Legislature qualify as ratification and override a prior rejection? That scenario would be theoretically be the simplest avenue to legitimate constitutional ratification of the 17th Amendment.

Joe Eldridge - 9/24/2008

I agree wholeheartedly with the idea of secret ballot. It will prevent influence from outsiders. I do think that the final election by the people still makes them accountable to the people and this is still out of balance. They need to represent the state government for true balance to be restored. Also the selected candidates would still need to advertise etc for the final election and this means raising money from outside interest.

The secret ballot part is all they had to do in 1913 and it alone would have solved the problems they were experiencing. That and the "tie vote" could have been solved by the Governor breaking the tie.

The secret ballot would also allow a member of one party to "cross party lines" and vote for a person that they feel is actually better qualified without fear of retaliation by members of his own party. This would result in better quality Senators.

Samuel K Swenson - 10/25/2007

Every time this issue arises I always wonder why the obvious argument against the 17th amendment does not come up. Under Article 5 of the constitution the rules governing amendments are layed out. Nearly every Constitutional scholar will agree that the Constitution makes a distinct delineation between the "people" and the "states" as separate entities. Thus, when the constitution refers to "states" it is referring to a separate entity than the "people." The last part of Article 5 clearly states that the only thing about the Constitution that cannot be amended is that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." This means that unless each and every state unanimously agreed to the 17th amendment then the amendment is unconstitutional on its face. Therefor this debate should not only revolve around policy, but it should also include the overall legality of the amendment as well.

Peter K. Clarke - 10/9/2007

Constitutional amendments require three quarters support from state legislatures, the very bodies the 17th Amendment stripped power from. How was this managed ?

Mathieu Dub e - 11/28/2006

The 17th Amendement was a political solution that did nothing to fix the underlying problem. Senators can be corrupted. Whether or not they are elected by the State of the people of the State makes no difference in the concept. A reform in the system where Senators are overseen (just as they oversee functions of the executive branch) would go much further to fixing the problem.

Repealing the 17th is no better solution to today's problems than amending the Constitution was in 1913. Personaly I think we should go back to the original and then fix the problem. More power to the States and less power to the Federal government. I trust my neighbors more than a complete stranger.

dave josephsen - 11/25/2006

I'm probably being dense, but given that article 1, section 3 as it was originally written doesn't specify how the legislatures should go about electing their representitives, it seems to me that this problem could have been solved by the state legislatures in the manner they saw most fit. Why did anyone feel that this particular problem merited changing the constitution?

J D M - 4/17/2006

I don't really think you've gave this idea enough critical thought before you dismissed it as crazy.

Let me ask some questions.
1. What were the financial disclosure laws on the books when your example Senators were exposed, when the 17th Amendment passed, and today, and how did they differ?
2. What effect on your example Senators did organizations akin to present day "watch-dog" groups have in exposing said officials?
3. If the old system were still in place today, what impact would the present day Freedom of Information Act, current disclosure laws for federal officials, and watch-dog groups (assuming those groups weren't as prevalent then as now) have in keeping Senators in line?
4. Which would be easier to buy off: one elected representative or a majority/plurality of an elected body, given today's disclosure laws and watch-dog groups?

I really think this author's casting off this idea as crazy without describing how different the political arenas were then versus now is tantamount to being prejudicial, which is not very scholarly.

Gary John Hagen - 12/29/2005

The idea of secret ballots could be used in a wider sense. We accept the idea that the votes of the voting public should be secret - why not let the votes of representatives be secret the problem of buying votes applies to most bills. We could vote for representatives based on their public positions but give them the freedom to vote their conscience without fear of election funds drying up or being voted out for taking unpopular votes.

Gary John Hagen - 12/29/2005

I like the idea. I can't help you in Montana, but I will suggest it in Virginia to the political activists I know.

Jerry O'Neil - 10/3/2004

While the proper thing to do in the long run might be to repeal the 17th Amendment, I want to take an intermediate step at this time. I want to introduce and pass a bill in Montana to have the political caucuses in the legislature nominate the U.S. Senate candidate for that caucus.

This would be a normal bill. Not a resolution to amend the U.S. Constitution and not a bill to amend the Montana Constitution. Just a bill to have the Republican caucus in the legislature nominate the Republican candidate for the U.S. Senate and the Democrat caucus nominate the Democrat candidate for the U.S. Senate.

These nominations would be voted on by secret ballot within the caucuses. This would be to prevent special interests from unduly influencing these nominations. When W.A. Clark wanted to be appointed to the U.S. Senate he purchased the necessary votes.

The method I am proposing is designed to prevent the same nefarious actions from occurring in the future.

Any other parties with representation in the state legislature would have their legislative caucus nominate the U.S. Senate candidate for their party. Any other parties without representation in the state legislature would nominate their U.S. Senate candidates at their state convention. There would no longer be a primary election for U.S. Senate candidates in Montana (and any other states that adopts this idea).

The candidates who have received the nominations of the various caucuses would appear on the general election ballot to be voted on by the general population.

This method of nominating U.S. Senate candidates would clean up U.S. Senate elections in at least four ways:

1. It would allow and cause senate candidates to be nominated on the power of their statesmanship rather than their ability to raise money. The state legislatures would nominate the candidates they believe they can work with. Quite likely these would be people they have previously worked with, such as governors, secretaries of state, superintendents of school, state auditors or other legislators.

2. This would amount to campaign finance reform. The state legislatures would not be likely to base their nomination on who has access to campaign donations from the drug manufactures, Corporations such as Enron, big unions or big media.

3. Because they would vote by secret ballot, it would be much less likely the state legislator's votes would be bought. Not many lobbyists or power brokers would be willing to pay big money for votes when they would have no way to know if the legislators actually voted the way they were paid to vote.

4. The candidates who receive the nominations from the state legislature(s) would still have to be presented to the public for the general election. There they would have an opponent to air their dirty laundry before the public. The caucuses would want to nominate candidates who are electable.

I am looking for support for this idea.

Jerry O'Neil

Lewis L. Gould - 8/24/2004

Actually, it was ratified rather quickly. Congress passed the resolution about the amendment in May 1912 and the amendment was ratified a year later as the legislatures acted with a high degree of speed. In some senses the legislatures had already adopted the amendment in practice. For a state such as Oregon, the legislature had instituted a procedure where the candidates for election to that body promised that they would vote for the winner of a popular election for the Senate, regardless of party. Other states in the early 20th century adopted similar procedures or held primaries to choose senatorial candidates. The pressure for adoption of the Seventeenth Amendment came from the legislatures themselves during the first decade of the 20th century. So the legislatures gave up their power to elect senators with few protests. There is a sense in some states that legislatures found the process of electing senators a distraction from their other business, a source of potential political problems, and over time a resonsibility they were quite ready to relinquish. A good brief essay about the amendment in the Senate is Larry J. Easterling, "Senator Joseph L. Bristow and the Seventeenth Amendment," Kansas Historical Quarterly, 41(Winter, 1975): 488-511.

Lewis L. Gould - 8/23/2004

Let me try that quote again: "Clark himself is so thin that in evening clothes he just seems the handle for his yellow mop of curly hair and whiskers. Someone said if you took away the whiskers and the scandal, there would be nothing left of him, but, however, he has used his money, he came by it honestly, which is more than is said of some other senatorial millionaires."

Lewis L. Gould - 8/23/2004

Thanks for the comment and correction. For a little more on Clark, see Ellen Maury Slayden, Washington Wife, pp. 91-92. "Clark himself is to thin than in evening clothes he just seems to handle for his yellow mop of curly hair and whiskers. Somone said if you took away the whiskers and the scandal there would be nothing left of him, but, however he has used his money, he came by it honestly, which is more than is said of some other senatorial millionaires." Plus ca change...

Charles V. Mutschler - 8/23/2004

Clark, Like Marcus Daly and the other early mine developers at Butte were motivated by the camp's potential as a silver camp. Thus it is true that his intial mining interests were silver. However, the real wealth proved to be copper, and after the mid 1880's, copper, not silver, was the primary focus of the mines in Butte. Clark went on to be involved in copper mining in Arizona as well. His efforts at buying a seat in the Senate, and the early economic and political history of Butte, and Montana, are nicely covered in Michael Malone's _The Battle for Butte_. By 1899 Butte was not what most mining historians would consider to be a silver camp, and Clark's big wealth seems to have been largely due to his copper mining interests by that date.

Clark's senatorial campaign deserves more attention than it usually receives.

Charles V. Mutschler